Ex Parte Helmersson et al

Patent Trial and Appeal Board

Jun 21, 2013

10586032 (P.T.A.B. Jun. 21, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
10/586,032 07/13/2006 Sture Helmersson 1026-0006WOUS 1735
49698 7590 06/21/2013
MICHAUD-Kinney Group LLP
306 INDUSTRIAL PARK ROAD
SUITE 206
MIDDLETOWN, CT 06457
EXAMINER
O'CONNOR, MARSHALL P
ART UNIT PAPER NUMBER
3646
MAIL DATE DELIVERY MODE
06/21/2013 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte STURE HELMERSSON, LEIF LARSSON, OLOV NYLUND,
and HAKAN SODERBERG
____________________

Appeal 2011-006082
Application 10/586,032
Technology Center 3600
____________________

Before: WILLIAM V. SAINDON, SCOTT A. DANIELS, and
JEREMY M. PLENZLER, Administrative Patent Judges.

SAINDON, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2011-006082
Application 10/586,032
2
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision rejecting claims 28, 30, 31, 33, 34, 36-48, 50-52, and 54-57. We
have jurisdiction under 35 U.S.C. § 6(b).

The Claimed Subject Matter
Claim 28, reproduced below, is illustrative of the claimed subject
matter.
28. A spacer for holding a number of elongated fuel rods
intended to be located in a nuclear plant the spacer enclosing a
number of cells, each cell having a longitudinal axis and
arranged to receive a fuel rod in such a way that the fuel rod
extends substantially in parallel with the longitudinal axis, each
cell being formed by a sleeve, having an upper edge and a
lower edge, the sleeve including a number of elongated
abutment surfaces, which project inwardly towards the
longitudinal axis and extend substantially in parallel with the
longitudinal axis for abutment to the fuel rod to be received in
the cell, and the lower edge, seen transversely to the
longitudinal axis, having a wave shape with wave peaks, which
are aligned with a respective one of said abutment surfaces, and
wave valleys located between two adjacent ones of said
abutment surfaces;
wherein the upper edge, seen transversely to the
longitudinal axis, has a wave shape with wave peaks, which are
aligned with a respective one of said abutment surfaces, and
with wave valleys located between two adjacent ones of said
abutment surfaces, each of said elongated abutment surfaces
extending from a respective one of said wave peaks of the
upper edge to a respective one of said wave peaks of the lower
edge, and the sleeves abut each other in the spacer along
respective connection areas, each extending substantially
parallel to the longitudinal axis between one of said wave
valleys of the upper edge and one of said wave valleys of the
lower edge.
Appeal 2011-006082
Application 10/586,032
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References
The Examiner relies upon the following prior art references:
Shallenberger
Masuhara
Hirukawa
Nylund II
Nylund
Mori
US 4,800,061
US 5,272,741
US 5,331,679
US 5,778,035
US 5,875,223
US 6,901,128 B2
Jan. 24, 1989
Dec. 21, 1993
Jul. 19, 1994
Jul. 7, 1998
Feb. 23, 1999
May 31, 2005

Rejections
The Examiner makes the following obviousness rejections under 35
U.S.C. § 103(a):
I. Claims 28, 30, 31, 33, 34, 36, 40-43, 47, 54, and 57 over Nylund and
Hirukawa.1
II. Claims 37, 38, and 39 over Nylund, Hirukawa, and Mori.
III. Claims 48 and 51 over Nylund, Hirukawa, Mori, and Masuhara.
IV. Claims 44-46 over Nylund, Hirukawa, and Shallenberger.
V. Claims 50 and 52 over Nylund, Hirukawa, and Masuhara.
VI. Claims 55 and 56 over Nylund, Hirukawa, and Nylund II.

SUMMARY OF DECISION
We AFFIRM.

1 The Examiner includes claims 29 and 32 in the listing of claims included in
this rejection but these claims have been canceled. Compare Ans. 4 with
Ans. 2; see also App. Br. 20.
Appeal 2011-006082
Application 10/586,032
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OPINION
Appellants argue the claims of Rejection I as a group; we select claim
28 as representative. Appellants’ arguments for the remaining rejections are
that they do not cure the deficiencies alleged in Rejection I. Accordingly,
the issues raised in Rejection I are dispositive of the appeal.
Claim 28 is directed to a nuclear fuel rod spacer sleeve, the sleeve
having surfaces for abutting a fuel rod, and the top and bottom edges of the
sleeve having a wave pattern, the peaks of the top and bottom edge waves
being aligned with one another and with the abutting surface. See, e.g., App.
fig. 6.
The Examiner found that Nylund describes each feature of claim 28,
including a bottom edge wave peak aligned with an abutting surface, but that
the top edge of Nylund is flat rather than having a wave pattern. Ans. 4-5.
The Examiner found that Hirukawa describes a similar structure having
wave patterns on the top and bottom edges of the sleeve and specifically
describes that the peak of the top edge wave pattern aligns with the abutment
surface. Ans. 5, 28. The Examiner found that the top edge wave pattern
assists in insertion of the fuel rod into the spacer. Ans. 6. The Examiner
also found that Nylund describes the abutment surface as extending the
entire length of the sleeve. Id. In view of these findings, the Examiner
concluded that it would have been obvious to provide the top edge of
Nylund’s sleeve with a wave pattern, and specifically, to make the peak of
that wave pattern align with the abutment surface and bottom edge peaks in
conformance with the teachings of Nylund and Hirukawa. Id.
Appellants first argue that one reviewing Nylund would not seek
guidance or modification from Hirukawa because Nylund’s inventor was
concerned with reducing wear of fuel rods due to debris and Hirukawa’s
Appeal 2011-006082
Application 10/586,032
5
inventor was concerned with pressure loss. App. Br. 14. However, prior art
disclosures are useful for all they teach, and are not limited to the particular
concerns or problems faced by those inventors. See, e.g., In re Lemelson,
397 F.2d 1006, 1009 (CCPA 1968) (“The use of patents as references is not
limited to what the patentees describe as their own inventions or to the
problems with which they are concerned”). Accordingly, Appellants’
argument is unpersuasive.
Appellants next argue at length the two references in isolation. App.
Br. 14-20. The question is not whether the prior art individually describes or
suggests each limitation, but whether the prior art as a whole renders
obvious each limitation. The Examiner’s findings and explanations provide
at least a preponderance of evidence suggesting the claimed subject matter is
obvious. To wit, Hirukawa teaches that it is known in the art to include
wave shapes (of a variety of patterns) on the top edge of spacer sleeves, one
of such ways is wherein the wave peaks align with the abutment surfaces.
See, e.g., Hirukawa, col. 2, ll. 24-29, col. 4, ll. 19-24; figs. 4, 12. This
teaching alone, if combined with Nylund’s sleeve for the reasons proposed
by the Examiner, results in the claimed aligned-wave structure. However,
the Examiner provides the additional reasoning that Nylund requests the
abutment surface to go along the entire sleeve length, which would require
the wave peaks at the top edge to align with the abutment surface (and thus,
the bottom edge wave peaks). Ans. 6. In addition to all of the Examiner’s
findings and explanations, we comment that this is a case where, “when a
patent ‘simply arranges old elements with each performing the same
function it had been known to perform’ and yields no more than one would
expect from such an arrangement, the combination is obvious.” KSR Int'l
Appeal 2011-006082
Application 10/586,032
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Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007), citing Sakraida v. Ag Pro,
Inc., 425 U.S. 273, 282 (1976).
Appellants’ semantic arguments regarding the shape of the waves in
Hirukawa, throughout both briefs, fail to recognize that no particular wave
shape is required by the claims. It is well established that limitations not
appearing in the claims cannot be relied upon for patentability. In re Self,
671 F.2d 1344, 1348 (CCPA 1982). Trapezoidal waves are waves, as are
waves of any shape. Appellants’ admission that Hirukawa’s shapes on the
top edge are “wave-like shape[s] with wave peaks and wave valleys” further
undermines Appellants’ position that the admitted wave peaks in Hirukawa
are not wave peaks as claimed. Spec. 4:22-26. As the Examiner alludes
(Ans. 27), even if a particular sinusoidal wave shape were claimed,
Hirukawa suggests the exploration of various shapes as well as some factors
to consider when determining the appropriateness of those various shapes.
See, e.g., Hirukawa, col. 2, ll. 24-48, col. 8, ll. 38-55, col. 9, ll. 5-18
(providing example shapes as well as various flow characteristics of those
shapes); see also In re Applied Materials, Inc., 692 F.3d 1289, 1297 (Fed.
Cir. 2012) (“A recognition in the prior art that a property is affected by the
variable is sufficient to find the variable result-effective”).
Having considered all of Appellants’ arguments in both Briefs, we are
not apprised of error in the Examiner’s rejection of claim 28. Claims 30, 31,
33, 34, 36, 40-43, 47, 54, and 57 fall therewith. Rejections II-VI are
sustained because we were not apprised of error in the Examiner’s rejection
of claim 28.

Appeal 2011-006082
Application 10/586,032
7
DECISION
We AFFIRM the Examiner’s decision regarding claims 28, 30, 31, 33,
34, 36-48, 50-52, and 54-57. No time period for taking any subsequent
action in connection with this appeal may be extended under 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED

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